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Diaz v. Berryhill

United States District Court, N.D. Indiana, Hammond Division

September 27, 2018

PATRICIA A. DIAZ, Plaintiff,
v.
NANCY A. BERRYHILL, Deputy Commissioner for Operations, Social Security Administration, Defendant.

          OPINION AND ORDER

          Andrew P. Rodovich United States Magistrate Judge

         This matter is before the court on petition for judicial review of the decision of the Commissioner filed by the plaintiff, Patricia A. Diaz, on July 24, 2017. For the following reasons, the decision of the Commissioner is REMANDED.

         Background

         The plaintiff, Patricia A. Diaz, filed applications for Disability Insurance Benefits and Supplemental Security Income on June 23, 2009, alleging a disability onset date of June 1, 2005. (Tr. 1535). The Disability Determination Bureau denied Diaz's applications initially, upon reconsideration, and in an unfavorable hearing decision dated February 16, 2011. (Tr. 1535). Diaz requested review from the Appeals Council, which was denied on October 17, 2011. (Tr. 1535). On appeal, the United States District Court remanded the Commissioner's final decision for further proceedings on September 30, 2013. (Tr. 822-845).

         A second hearing was held, and the Administrative Law Judge (ALJ) again issued an unfavorable decision on February 27, 2015. (Tr. 655-675). Diaz filed a second appeal in the United States District Court that was remanded on a joint motion on January 8, 2016. (Tr. 1706-1707). A third hearing was held before ALJ Romona Scales on February 8, 2017, and the ALJ again issued an unfavorable decision on April 4, 2017. (Tr. 1536). Diaz appeared and testified at the hearing, as well as Medical Expert (ME) Louis A. Fuchs, M.D., and Vocational Expert (VE) Richard T. Fisher. (Tr. 1536).

         Diaz meets the insured status requirements of the Social Security Act through December 31, 2020. (Tr. 1538). On April 4, 2017, the ALJ issued an unfavorable decision and made findings as to each of the steps in the five-step sequential analysis. (Tr. 1535-1551). At step one of the five-step sequential analysis for determining whether an individual is disabled, the ALJ found that Diaz had not engaged in substantial gainful activity since June 1, 2005, the alleged onset date. (Tr. 1538). The ALJ acknowledged that Diaz engaged in work after her alleged onset date, including providing after school child care at her home since 2007. (Tr. 1538). However, the work activity did not rise to substantial gainful activity. (Tr. 1538). Yet, the ALJ noted that Diaz's earnings raised the issue of total disability. (Tr. 1538). The ALJ found that while the earnings did not rise to substantially gainful activity, her work activity had been consistent since the alleged onset date, including her monthly earnings in 2010, 2011, and 2012 coming within $111-$121 of what was indicative of substantial gainful activity per month. (Tr. 1539).

         At step two, the ALJ determined that Diaz had the following severe impairments: multilevel degenerative disc disease of the lumbar and cervical spine, mild Sjogren's syndrome, and pelvic floor dysfunction/out dysfunction constipation. (Tr. 1539). The ALJ noted that Diaz had numerous other impairments. (Tr. 1539). However, those impairments did not either meet the durational requirement or were not medically determinable. (Tr. 1539).

         The ALJ found that Diaz's hypertension was non-severe because it generally was well controlled with medication and it did not cause more than minimal functional limitations. (Tr. 1539). Also, Diaz's uterine bleeding was neither severe nor did it meet the durational requirements. (Tr. 1540). The ALJ indicated that the record was devoid of evidence that Diaz's right carpal tunnel syndrome caused more than minimal functional limitations. (Tr. 1540). Finally, the ALJ found that the record as a whole did not support a finding of fibromyalgia as a medically determinable impairment. (Tr. 1541).

         The ALJ noted that record did not contain treatment by a mental health professional or diagnosis from a mental health professional, participation in therapy, or prescribed medication. (Tr. 15420. However, Diaz testified that she experienced depression. (Tr. 1542). The ALJ indicated that pursuant to the most recent Order of Remand, the ALJ sent Diaz to a consultative psychological evaluation with Craig A. Nordstrom, Psy.D. on November 8, 2016. (Tr. 1542).

         After the examination, Diaz was prescribed medication for anxiety in January of 2017. (Tr. 1542). Diaz indicated that the examination caused an increase in her anxiety because it brought up old memories and feelings. (Tr. 1542). The ALJ noted that Diaz had testified that she did not have significant issues with anxiety prior to the examination. (Tr. 1542). Specifically, she reported that prior to January of 2017 she had 2-3 panic attacks per month, while after the examination and since starting the medication she experienced 3-4 panic attacks per day. (Tr. 1542). The ALJ found that it was notable that Diaz had not sought any treatment for psychological or psychiatric symptoms, which she deemed were severe enough to limit her functioning. (Tr. 1542). The ALJ also noted that Diaz had not sought emergency care or treatment. (Tr. 1542).

         The ALJ found that Diaz's medically determinable mental impairments of anxiety, post-traumatic stress disorder, obsessive compulsive disorder, and depression, considered singly and in combination, did not cause more than minimal limitation in her ability to perform basic mental work activities and therefore were not severe. (Tr. 1542). The ALJ considered the paragraph B criteria for mental impairments, which included four areas of mental functioning:

Understanding, remembering, or applying information; interacting with others; concentrating, persisting or maintaining pace; and adapting or managing oneself.

(Tr. 1543).

         The ALJ determined that Diaz had a mild limitation in understanding, remembering, or applying information. (Tr. 1543). Next, the ALJ found that Diaz had a mild limitation in interacting with others. (Tr. 1543). Dr. Nordstrom opined that Diaz had a mild limitation in the ability to interact appropriately with the public, supervisors, coworkers, and usual work situations and changes in a routine work setting. (Tr. 1543). Also, the ALJ found that Diaz had a mild limitation in concentrating, persisting, or maintaining pace. (Tr. 1543). Dr. Nordstrom noted that Diaz's ability to sustain concentration appeared to be adequate. (Tr. 1543). Finally, the ALJ concluded that Diaz had a mild limitation in adapting or managing herself. (Tr. 1543). The ALJ determined that because Diaz's medically determinable mental impairments caused no more than mild limitations in any of the functional areas, they were non-severe. (Tr. 1543).

         At step three, the ALJ concluded that Diaz did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 1544). Specifically, the ALJ found that the medical evidence did not meet or medically equal Listings 1.04A and 14.10B. (Tr. 1544).

         After consideration of the entire record, the ALJ then assessed Diaz's residual ...


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